Attorney General Merrick Garland is a latter-day Hamlet — a man of action delayed by thought. Reportedly, he is mulling appointing a special counsel to hold his coat in “two sprawling federal investigations” involving former President Trump. A special counsel, Garland may think, will erase any suggestion of a banana republic prosecution. This narrative will be intensified particularly if Trump announces a re-run for the presidency which he has all but said he will “very, very, very probably” do after the midterm elections. But it may be argued with some force that we will look like a banana republic if we fail to uphold the rule of law.
Appointment of a special counsel is no new suggestion. In a New York Times op-ed last June, Jack Goldsmith, a conservative Harvard Law School professor and former assistant attorney general in the George W. Bush Justice Department, weighed in on the side of appointing a special counsel if “the investigation presents a conflict of interest for the department and if Mr. Garland believes such an appointment would be in the public interest.”
Ultimately, even if a special counsel is appointed, the charging decisions would have to be made by Garland and the Department’s leadership. If Garland were to reject the special counsel’s recommendations, he would have to inform Congress, but what would that achieve other than an ephemeral transparency and a useless autonomy?
Of course, Goldsmith’s suggestion occurred when the knowable charges against Trump were: that “in disregard of the advice of his closest aides including his Attorney General Bill Barr, he falsely claimed that the 2020 election was fraudulent and stolen”; that he “pressured Vice President Mike Pence to refuse to count certified electoral votes” during the ceremonial electoral count in Congress on Jan. 6; and that he fired up a mob, ordered them to march on the Capitol and failed and refused for over three hours to tell his violent followers to call it off.
Add to the story, Trump knew that the mob was armed. All this was of course before anyone knew of the evidence unearthed by the Jan. 6 committee, and well before anything was known about the Mar-a-Lago papers, the violations of the Espionage Act for mishandling classified documents and the obstruction of justice that occurred in Washington and Florida.
At this late date, observes Harvard Law Professor Larry Tribe, who recommended appointment of a special counsel last March, there is little that a special counsel adds to the mix.
Indeed, such an appointment would only serve to postpone further Trump’s day of reckoning. Who would this special counsel be? It would take Diogenes with a lantern to find someone “with a Republican pedigree” who is non-MAGA, immune from attack by the conspiracy theorists and willing to be bound by the facts and the law.
A special counsel will have to assemble his or her own staff of prosecutors. If the special counsel uses Garland’s prosecutors, it will undermine independence. A special counsel will not want to reinvent the wheel. She will need to have unlimited access to Garland’s investigative files and memoranda, which will give rise to the plausible argument that Garland just handed the case over to the special counsel on a silver platter, and that the special counsel is just window dressing for a prosecutorial wrap-around.
In the calamitous event that Trump is elected, there is the advantage that he cannot fire the special counsel except for “good cause.” But, if the special counsel, like Robert Mueller, takes the position that the Justice Department cannot indict a sitting president, it is highly likely that Trump will never be indicted.
Garland has already gone too close to the tipping point to turn back and shed the case. He has braved criticism in authorizing the Mar-a-Lago search warrant, and so far his action has been upheld right up to the Supreme Court.
The search warrant uncovered Trump’s mishandling of highly classified documents and obstruction of justice. Garland has also granted use immunity to Kash Patel, who may be able to unlock the secrets of why Trump spirited from the White House highly sensitive documents as he testifies soon before a federal grand jury.
A special counsel would still enable Trump to argue that the continuing investigation is a “witch hunt” and a partisan enterprise, accomplished by his political rival President Biden, and his committed political base will surely believe it.
Barr appointed Mueller special counsel to investigate collusion and obstruction of justice, but Mueller was subjected to a fusillade of invective that he wasn’t independent. Barr also appointed John Durham to investigate the origins of the Russia-gate inquiry, and Durham was subjected to partisan attack. There is no way around preventing the argument by the MAGAs that any indictment of Trump will “tear the country apart” and unleash violent protest. Trump promised as much before there was any suggestion of a special counsel as he charged that the Justice Department would be “sick and deranged” if it charged him with any crime.
Goldsmith wrote that if Garland indicts, the “prosecution would further inflame our already blazing partisan acrimony.” But that would also be true if the special counsel indicts. It will also be true if Fulton County, Ga., District Attorney Fani Willis indicts Trump for his allegedly coercive efforts to overturn the election in that state. She is expected to conclude her investigation by the end of the year, now that the Supreme Court agrees Sen. Lindsey Graham (R-S.C.) must testify before the grand jury looking into the matter. Her prosecutorial decisions are completely outside Garland’s supervision and control.
Any indictment of Trump will fuel claims, which will be made anyway, that Biden and Garland should be impeached, that Hunter Biden should be prosecuted and even that House Speaker Nancy Pelosi (D-Calif.) should be prosecuted and executed for treason.
Any prosecution of a political figure will feel like a political prosecution even if it is something as cut and dried as mishandling classified documents. But the Supreme Court has said that no one, even the president, and certainly a mere former president, is above the law.
James D. Zirin is a former federal prosecutor in the Southern District of New York.